The State of Oregon v. Rain Man

Sunday

Aug 5, 2012 at 12:01 AMAug 5, 2012 at 2:50 AM

EAGLE POINT — At 13 feet deep and well over an acre in size, one of Gary Harrington's three illegal reservoirs off Crowfoot Road looks more like a private playground than a rain-fed, backyard fire pond.

By MARK FREEMAN

EAGLE POINT — At 13 feet deep and well over an acre in size, one of Gary Harrington's three illegal reservoirs off Crowfoot Road looks more like a private playground than a rain-fed, backyard fire pond.

A fishing dock lined with rods and rod holders is tethered to shore near an outdoor barbecue. Boats line the bank. A fish feeder floats nearby, dispensing food to the illegally stocked largemouth bass Harrington says he bought from a Medford pet store.

It's a place where family and friends spend hot summer days and where wildfire rigs can hook up to a water line any time they need a refill, free of charge.

"The fish and the docks are icing on the cake," says Harrington, 63. "It's totally committed to fire suppression."

It's a story state police and water managers have heard for more than a decade and still consider irrelevant. Ditto for state courts that three times over an 11-year span have convicted Harrington of illegally storing water without a permit. On Wednesday, Harrington must report to the Jackson County Jail for a 30-day sentence for his latest conviction.

Jackson County Circuit Judge Timothy Gerking last month ordered Harrington to drain the ponds, breach the dams built to create them and pay $1,500 in fines.

But Harrington's not budging, and he's undergoing a series of gyrations to keep the ponds and dams intact.

Now 0-for-3 in the court system, Harrington is taking his case to the court of public opinion to gather property-rights sympathies as simply a landowner capturing the rain that falls on his land.

To state officials, Harrington is a serial water thief. To supporters, he's "Rain Man," a poster boy for those who believe government is overstepping its bounds.

He's done about two-dozen radio and television appearances since his July 25 sentencing, all carefully screened to ensure his property-rights message gets across.

"We're controlling what's being said, so we get the facts out there," says Dominic Nutter, who calls himself a legal researcher and not a lawyer who is advising Harrington and screening his media requests. "We're trying to make sure people understand what their rights are."

Water resources officials say his rights are clear: He cannot store water without a permit, and he does not have a permit.

The law exempts water collected off parking lots or rooftops and funneled into rain barrels, water resources officials say. If it's not gathered on an artificial, impervious surface, such as a rooftop, then you need a state water-right permit to collect it.

That's way different than the roughly 40 acre-feet of water — enough to fill 20 Olympic-sized swimming pools — Harrington illegally captures without a water right behind dams as much as 20 feet tall that he built without permits, state officials say.

"Mr. Harrington has operated these three reservoirs in flagrant violation of Oregon law for more than a decade," Oregon Water Resources Department Deputy Director Tom Paul says.

"What we're after is compliance with Oregon water law, regardless of what the public thinks of Mr. Harrington," Paul says.

Harrington said he has appealed his conviction to the Oregon Court of Appeals and has asked the Oregon Supreme Court to step in and keep Gerking's rulings from being enforced during his appeal.

On July 18, a week after his conviction and a week before his sentencing, Harrington deeded four tax lots that include the three ponds for $4 to the Farm of the Family Health and Recreation Association. Harrington calls it a "private member association" he set up on June 1 that includes Harrington and select friends and family.

Nutter says the ponds now belong to the association, which has no legal beef with water resources managers.

"The crime follows Gary, not the properties," Nutter says.

Because Harrington was issued three years of bench probation that includes conditions that he drain the reservoirs and breach the dams, those conditions still apply, says Kate Medema, a state Department of Justice spokeswoman.

"If he says he has no authority to do so in light of these deeds, we'll probably end up back in court," Medema says. "We expect Mr. Harrington to follow the conditions of his probation."

Harrington has argued in court filings that neither he nor any Oregonian is beholden to the water resources department because its members failed to take and file the proper oaths of office Harrington claims are required by the Oregon Constitution.

Gerking ruled against Harrington's claim.

"Mr. Harrington misinterpreted the state and federal constitutions and his reading of them is overly broad," Medema says. "His reading would, essentially, require every state employee to take an oath of office."

Harrington has posted signs on his properties warning any state officers to stay off his property, citing protections under the First and 14th amendments to the U.S. Constitution.

Sine Harrington's sentencing, state water-resources officials have attempted to gain access to his property to see whether Harrington has complied with the judge's order, but were denied, Paul says.

"I think the court is going to look to us to enforce the judge's order," Paul says.

Water resources officials further discussed the case last week with Patrick Flanagan, the Department of Justice prosecutor who handled the most recent case, Paul says. Paul declined to discuss the nature of those discussions.

Between radio and television appearances last week, Harrington set up a website with links to interviews on Fox News Channel's "Fox and Friends" and other media outlets. Fox News is owned by News Corp., which also owns the Mail Tribune and Ashland Daily Tidings.

The website, www.empoweringthejury.org, includes a petition to the state of Oregon to reverse Harrington's July 11 guilty verdict.

Harrington has solicited a videographer to film footage showing that his reservoirs don't have creeks flowing into them. He intends to post it and other information about his defense that he wasn't allowed to present in court, he says.

Frustrated water managers are unimpressed.

"We've been working on this about 10 years," Paul says. "We very much support what the court did."

As the water drama continues to play out, Harrington relishes his Rain Man role in what he and his supporters couch as one little guy's fight against big government.

"I guess I'm not surprised," Harrington says. "I realized a while ago that this is a fight worth fighting."

Reach reporter Mark Freeman at 541-776-4470, or email at mfreeman@mailtribune.com.